As a Pennsylvania medical malpractice lawyer, I was interested to see a decision throwing out a state law requiring testimony in medical malpractice cases from experts in the specific medical field at issue. In Broussard v. St. Edward Mercy Health System et al., the Arkansas Supreme Court found unconstitutional a state law requiring that medical malpractice cases be proven with testimony from an expert in the same specialty as the defendant. This violates the separation of powers doctrine and the inherent authority of the courts, the high court said. The decision means Broussard may pursue her claim for medical malpractice in the treatment of what she says is a burn she sustained during surgery.

Broussard underwent removal of one or more parathyroid glands in April of 2006. After the surgery, she discovered what she thought was a burn at the site of the surgery. Although she has been unable to discover its cause, the injury caused pain and swelling that caused her to go back to the hospital emergency room six days after her discharge from the surgery. At that time, she was admitted for apparently unrelated conditions related to kidney failure. A dermatologist told her during this hospitalization that the injury would heal. Nonetheless, she sought treatment eventually for dead and sloughing tissue at the surgical site at a burn center, which removed the “pigskin” and grafted on healthy skin. She eventually sued the hospital and several of its nurses and technicians; Dr. Steven Seffense, the thyroid surgeon; and Dr. Michael Coleman, Jr., the kidney specialist. The trial court granted summary judgment to the doctors based on finding that the expert testimony law was constitutional. Broussard appealed.

The Arkansas Supreme Court started by reviewing the law, which says “a medical provider of the same specialty as the defendant” must testify to prove plaintiffs’ claims about standards of care and whether the defendant’s actions met those standards. The high court found that this was unconstitutional in Arkansas because it sets out procedural law — the province of the courts themselves — rather than the substantive law the legislature may make. Furthermore, it said, the expert testimony requirement conflicts with existing law because the high court itself had already set out rules for expert testimony in Arkansas Rule of Evidence 702. Finally, the high court found that the trial court should not have granted summary judgment as to Seffense because it ruled on the basis of events in the operating room rather than treatment of the burn. Because it believed Broussard should have been permitted to amend her pleadings to conform with discovery, the Supreme Court reversed.

As a Pennsylvania medical negligence lawyer, I appreciate the high court’s actions in Arkansas. The law being struck down is fairly recent and very likely to be a product of politics rather than good public policy. As we’ve seen in our own state in this legislative session, and in local and national debates throughout the country, the issue of medical malpractice is very politicized, with conservative politicians often seeking to pass laws that limit plaintiffs’ ability to recover a fair amount of money. This may get votes, but it does injured people a disservice by arbitrarily limiting their rights before they are even injured, giving judges and juries no flexibility to respond to the facts of the case. As a Philadelphia birth injury lawyer, I agree with the Arkansas Supreme Court that courts should control court procedures — not legislatures or politics.
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